[2016] UKSC 54; [2016] WLR (D) 540

Confidential information — Disclosure — Public interest — Revenue official disclosing information relating to taxpayers in off-record briefing with journalists — Journalists publishing articles containing information disclosed in briefing — Whether disclosure “made for the purposes of a function of the Revenue and Customs” so as to escape statutory prohibition on disclosure of information held by revenue — Whether disclosure infringing taxpayers’ right to confidentiality — Commissioners for Revenue and Customs Act 2005 (c 11), s 18

Facts

The first claimant company, of which the second claimant was the founder and chief executive officer, conducted a business of promoting film investment schemes. The schemes were intended to allow participating taxpayers to take advantage of certain tax reliefs and exceptions but the revenue considered them to be ineffective. In an off the record briefing with two journalists from a national newspaper, one of the revenue’s most senior officials discussed the claimants’ activities as promoters of such schemes. The journalists then published articles in the newspaper regarding tax avoidance schemes, in which they named the claimants, among others, as the promoters of film investment schemes, drawing upon and quoting statements made by the official in the briefing. The claimants brought judicial review proceedings seeking , inter alia, a declaration that the disclosures made by the official were unlawful and in breach of section 18(1) of the Commissioners for Revenue and Customs Act 2005, which prohibited disclosure by revenue officials of information held by the revenue in connection with one of its functions. The judge dismissed the claim and the Court of Appeal upheld his decision.

Held

Held, appeal allowed. Section 18(1) of the 2005 Act was intended to reflect the ordinary principle of taxpayer confidentiality, to which section 18(2)(a)(i) created an exception. Subsections 18(2)(b)–(h) contained a list of specific provisions permitting the disclosure of taxpayer information for various purposes other than the primary function. In that context section 18(2)(a)(i) could not be read as allowing disclosure of individual taxpayers affairs for reasons other than those allowed under section 18(2)(b)–(h) unless they fulfilled the revenue’s primary function. To allow words of the utmost vagueness in sub-section (2)(a)(i) to override the duty of confidentiality in subsection (1) would run counter to the principle of legality. In passing the 2005 Act, Parliament could not be supposed to have envisaged that by section 18(2)(a)(i) it was authorising revenue officials to discuss its views of individual taxpayers in off the record discussions whenever officials thought that would be expedient for some collateral purpose connected with its functions and section 18(2)(a)(i) could not be interpreted as making the disclosure of information about individual taxpayers a matter for the discretion of revenue officials, subject only to a rationality control. So the exception created by 18(2)(a)(i) was to be construed narrowly as merely permitting disclosure to the extent reasonably necessary for the revenue to fulfil its primary function of revenue collection and management. Public bodies were not immune from the ordinary application of the common law, including the law of confidentiality and, in accordance with ordinary principles, the question of breach of confidentiality was one for the court’s judgment. As a matter of principle, a disclosure of confidential information might sometimes be permissible on a restricted basis, but an impermissible disclosure of confidential information was no less impermissible just because the information had been passed on in confidence. The information supplied by the senior revenue official to the journalists about the claimants was information of a confidential nature, in respect of which the revenue owed a duty of confidentiality to the claimants under section 18(1) and the disclosure had not been justified under section 18(2)(a) (paras 9–20, 22–23, 28–29, 31–33, 36).